New Vote To Overturn Minaret Ban Being Considered In Switzerland

Yesterday's Washington Post reports that liberals in Switzerland are considering seeking signatures for a new initiative that would overturn the ban on building minarets in the country that was adopted last week. Club Helvetique, a group Swiss intellectuals, will move ahead to draw up an action plan. Other reports Sunday said that Libya's Muamar Gaddafi has warned that the ban has played into the hands of terrorists who seek to recruit for jihad against Europe. Meanwhile two complaints have been filed with Switzerland's Federal Court challenging the legality of new ban.

Recent Articles of Interest-- They Abound This Week

From SSRN:

• Ali Khan, Anti-Islamic Torture , (Global Dialogue, Vol. 12, 2010).
• Robert Luther, 'Unity Through Division': Religious Liberty and the Virtue of Pluralism in the Context of Legislative Prayer Controversies, (Creighton Law Review, Vol. 43, No. 1, 2009).
• David Nimmer, In the Shadow of the Emperor: The Hatam Sofer’s Copyright Rulings, (The Torah u-Madda Journal, 2009).
• David Nimmer, Rabbi Banet’s Charming Snake, (Ḥakirah, the Flatbush Journal of Jewish Law and Thought, pp. 69-108, 2009).
• Nathan B. Oman, 'The Living Oracles': Legal Interpretation and Mormon Thought, (Dialogue: A Journal of Mormon Thought, Vol. 42, No. 2, 2009).
• James T. Koebel, Colorado Christian University v. Weaver: The Tenth Circuit's Improper Redefinition of 'Excessive Entanglement', (Catholic University Law Review, Vol. 58, No. 4, 2009).
• Nicholas Hatzis, Neutrality, Proselytism and Religious Minorities at the European Court of Human Rights and the U.S. Supreme Court, (Harvard International Law Journal Online, Vol. 49, p. 120, 2009).
• Justin S. Murray, Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases, (November 14, 2009).

From FindLaw:

• Vicram David Amar & Alan Brownstein, Is Monitoring Moslem Religious Services Without Particularized Suspicion Constitutional?, (Dec. 4, 2009).

From SmartCILP:

• Robert F. Gotcher, Invective, Irony, Sarcasm and Other Negative Tropes in Pro-life Rhetoric, 3 University of St. Thomas Journal of Law & Public Policy 26-45 (2009).
• Joshua Dunn, Almost Persuaded: Statutory Protections for Students' Religious Rights, 38 Journal of Law & Education 627-636 (2009).
• Miriam Galston, Theocracy in America: Should Core First Amendment Values Be Permanent?, 37 Hastings Constitutional Law Quarterly 65 (2009).
• Oliver A. Houck, From Sacred Places: The Nikko Taro and the Taj Mahal, 31 University of Hawaii Law Review 369-422 (2009).
• Kenneth Lasson, Bloodstains on a "Code of Honor": The Murderous Marginalization of Women in the Islamic World, 30 Women's Rights Law Reporter 407-441 (2009).
• Matthew Lewis Sutton, Life is Beautiful: The Theological Aesthetic Argument for Life, 3 University of St. Thomas Journal of Law & Public Policy 15-25 (2009).
• Kevin H. Theriot, Prince or Pauper? Religious Proselytizing and the First Amendment, 3 University of St. Thomas Journal of Law & Public Policy 46-70 (2009).
• Martin Guggenheim, Texas Polygamy and Child Welfare, 46 Houston Law Review 759-816 (2009).
• Michael Newsom, Pan-Protestantism and Proselytizing: Minority Religions in a Protestant Empire, 15 Widener Law Review 1-91 (2009).

Survey Released On Prejudice In Europe

YNet News today reports on a study released last month by the Institute for Interdisciplinary Research on Conflict and Violence (IKG) at Germany's University of Bielefeld. The Study on Group-Focused Enmity in Europe revealed the following survey results:

• 50.4% of the Europeans agree that "there are too many immigrants" in their country....
• 24.5% agree that "Jews have too much influence in [country]"....
• 54.4% of the Europeans believe that "the Islam is a religion of intolerance."
• 31.3% agree that "there is a natural hierarchy between black and white people".
• 60.2% say that "women should take their role as wives and mothers more seriously."
• 42.6% say that homosexuality is "immoral".

The study found significant differences in levels of prejudice between countries-- the least was in the Netherlands and the most was in Poland and Hungary. Compared to prior years' studies, prejudice overall increased against only two groups-- Jews and homosexuals.

British Cardinal Rejects Seat In House of Lords

In Britain, Catholic Cardinal Cormac Murphy-O'Connor has turned down an invitation to become the first Catholic bishop to sit in the House of Lords. Prime Minister Gordon Brown hopes to appoint leaders of the major faiths to sit in the House of Lords along with the Church of England's 26 lords spiritual. Earlier this year, England's chief rabbi, Dr. Jonathan Sacks was ennobled and now sits in Parliament's upper house. Today's London Telegraph reports that Cardinal Murphy-O'Connor decided to reject the offer after broad consultation with other bishops and the Vatican. Bishops in England and Wales opposed the Cardinal's becoming a Peer because it might limit the Church's ability to be an impartial and critical voice on government policies. Also canon law bars clergy from taking any office involving the exercise of political power, so a special dispensation from the Pope would have been required.

Another Approach To Public Holiday Displays-- "Only In America"

Today's Coloradoan reports on Larimer County (CO) Sheriff Jim Alderen's third "Apparently Annual Politically Incorrect Christmas Tree Trimming Party." This year, though, in order to be inclusive, the sheriff also invited atheists and agnostics from the Colorado Coalition of Reason to be part of the event. Displays on the grounds outside the Sheriffs Office Administration Building include a Christmas tree, a nativity scene, a menorah and a sign placed from the Coalition of Reason wishing love, illumination and celebration for all during the Winter Solstice. A representative of the Coalition spoke, inviting people to learn more about each other's beliefs.

Recent Prisoner Free Exercise Cases

In Robinson v. Jacquez, 2009 U.S. Dist. LEXIS 110710 (ND CA, Nov. 10, 2009), a California federal district judge dismissed an inmate's claims that his free exercise rights were violated by prison authorities' failing to provide kosher meals, permit attendance at Jewish service, and provide a staff rabbi. The court found this was duplicative of another suit already filed by plaintiff.

In Grayson v. Evans, 2009 U.S. Dist. LEXIS 111953 (SD IL, Dec. 1, 2009), an Illinois federal district court permitted an inmate to proceed with his claim that his free exercise rights were violated when he was sent to segregation for refusing to cut his hair. He claims that his African Hebrew-Israelite religion requires him to grow his hair long.

In Williams v. Sampson, 2009 U.S. Dist. LEXIS 111589 (ED CA, Nov. 13, 2009), a California federal magistrate judge concluded that an inmate's claims that prison officials failed to set up a religious program for Muslim prisoners were too vague to state an equal protection or free exercise claim.

In Lawson v. Florida Department, 2009 U.S. Dist. LEXIS 111747 (ND FL, Nov. 3, 2009), a Florida federal magistrate judge found that plaintiff had misrepresented facts to the Court and pursued a frivolous, malicious claim in asserting that his free exercise rights were being burdened by prison officials. Plaintiff's claim was based on his assertions that he was an Orthodox Jew, while extensive evidence was presented that he consistently violated Jewish religious practices. As a Rule 11 sanction, the court recommended the lawsuit be dismissed, it be deemed a "strike" and its findings be sent to the Department of Corrections for other possible sanctions.

In Matter of Rossi v. Lape, (Sup. Ct. NY, Oct. 15, 2009), a New York trial court dismissed a Rastafarian prisoner's complaint alleging that some of his requests relating to the practice of his religion were rejected. The requests involved using the gymnasium as consecrated ground, preparation of food and availability of certain regalia for a Rastafarian event, and creation of an organization to raise funds for Rastafarian items.

In Zaahir v. Commonwealth of Kentucky, (KY Ct. App., Dec. 4, 2009), a Kentucky appellate court held in a 2-1 decision that appellant's free exercise rights do not require court and prison officials to change their records to reflect his religious name change.

Teachers Testify, Complaining About Consent Decree Banning Religion In Schools

In a 9-page consent decree issued last May (see prior posting), a Florida federal district court enjoined Santa Rosa County, Florida school officials from promoting or participating in any way in prayer with students at school events or during instructional time. However then a teacher's group, the Christian Educators Association, attempted to intervene to challenge the consent decree. (See prior posting). The court scheduled a hearing on whether the organization could show it has standing to seek a modification of the consent decree on the ground that it impacts the free speech or free exercise rights of teachers or employees. That hearing took place this week, with rather intriguing testimony from some of the district teachers.

Thursday's Pensacola News Journal reports on the testimony of third-grade teacher, Vicki Kirsch, who said: "My Christian beliefs are under attack and ... I wasn't able to do the things that I could do before the consent decree." She recounted that she is afraid to say, "God bless you," to a fellow teacher, and in not sure if she can let students talk about their baptisms in speeches to classes. She also complained she had to remove a cross from a personal area of her class room. A release from Liberty Counsel describes the testimony of two other witnesses:

Michelle Winkler broke down on the witness stand when she described how a coworker sought comfort from her after losing her two-year-old child. The two hid behind a closet door to pray, for fear they would be seen and held in contempt of the court order. Denise Gibson, an elementary teacher for 20 years, testified the order forces her to tell parents she cannot respond if they talk about church or their faith. She may not even respond to an email from a parent if it contains a Scripture verse or "God bless you." Instead, the District requires her to open a separate email to respond rather than hit "reply," in order to eliminate any trace of religious language.

On Friday, federal district judge Casey Rodgers ordered counsel for both sides to submit their closing arguments in writing. (Pensacola News Journal).

Tajik Authorities Say Baptists Must Register Before Gathering To Worship

In Tajikistan's capital of Dushanbe, a District Court has ordered a Baptist congregation to stop meeting for worship in an apartment of one of the congregation's leaders. Reports this week from Forum 18 and ABP say that officials insist the church must register under the country's Religion Law before it can meet. The Baptists refuse to do so on principle, and insist that under the Religion Law they should be permitted to meet privately without registration. The Baptists have filed an appeal of the ban with the Dushanbe City Court.

7th Circuit: Sheriff Unconstitutionally Endorsed Christian Speakers

In Milwaukee Deputy Sheriff's Association v. Clarke, (7th Cir., Dec. 4, 2009), the U.S. 7th Circuit Court of Appeals held that a Wisconsin sheriff's department violated the Establishment Clause when it invited representatives of the Fellowship of the Christian Centurions, a peer support group for law enforcement officers, to speak at several mandatory employee meetings. The court said:

We do not suggest ... that religiously affiliated groups are always constitutionally barred from working with or speaking to government employees. Rather, we limit our analysis to the facts of this case, where an authority figure invited a Christian organization that engaged in religious proselytizing to speak on numerous occasions at mandatory government employee meetings. A reasonable observer would have been well aware that the Sheriff did not extend such privileges lightly. Most other organizations that received similar access shared a common attribute: the Sheriff had expressed an interest in partnering with them. Indeed, it would be difficult to interpret the Sheriff’s actions as anything other than endorsement.

(See prior related posting.) Yesterday's Milwaukee Journal Sentinel reported on the decision.

Canadian Court Says Pastor's Anti-Gay Letter Was Protected Speech

In June 2008 in the Canadian province of Alberta, the Human Rights and Citizenship Commission ordered pastor Stephen Boissoin and his Concerned Christian Coalition to stop publishing and broadcasting disparaging remarks about gays, after earlier finding that a letter Boisson published in the Red Deer Advocate incited hatred against homosexuals in violation of the province's human rights law. The Commission also awarded $5000 damages to the high school teacher who had filed the complaint. (See prior posting.) On Thursday, according to Canadian Press, a Court of Queen's Bench in Alberta overturned the Commission's ruling, finding that Boisson's letter was protected free speech.

5th Circuit Hears Arguments In Native American School Boy's Hair Style Case

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Arocha v. Needville Independent School District. (Recording of full oral arguments.) In the case, a Texas federal district court enjoined school officials from enforcing the district's hair style policy against a 5-year old whose family taught him to wear his hair in two long braids in the tradition of Native American religions. The school board was only willing to accommodate the request by allowing the boy to wear his hair in a single braid, tucked into the back of his shirt. (See prior posting.) As reported by AP, school officials argued that their grooming policy was designed to teach proper hygiene, promote discipline and avoid school disruptions.

'Tis The Season For Battles Over Holiday Displays On Public Property

This is the time of year when disputes over holiday displays on public property and be expected. Here is a sampling of the most recent.

According to an editorial in the Desert Valley (NV) Times, some residents of Mesquite, Nevada boycotted the mayor's tree lighting ceremony on Tuesday because a notice of the event she sent out referred to it as a "holiday tree." The event included a prayer by a Presbyterian pastor, a plea from the mayor to remember the message that accompanied the birth of Jesus Christ, and City Council singing We Wish You a Merry Christmas. Mayor Susan Holecheck said she had to use the term "holiday tree" because of the potential for lawsuits from the ACLU and others.

Today's Santa Cruz (CA) Sentinel reports that according to Santa Cruz city officials, for years they have been issuing the wrong kind of permit to Chabad Rabbi Yochanan Friedman who puts up a menorah in downtown Santa Cruz. Officials say the permit he should be issued requires him to furnish round-the-clock security for the menorah. This would cost around $5000. This follows a campaign by atheists in the city to have the menorah removed from public property, though city officials say that did not influence their action. The city will continue to have a community tree downtown, with lights but no ornaments, and says security is not required for that. Also Mai Dao-Horton, who began the petition to have the menorah removed, says the tree is permissible because the city has "done a conscientious job of de-Christianizing it." [Thanks to Scott Mange for this lead.]

UPDATE: JWeekly (12/10) reports that an agreement has been worked out to for Chabad to provide insurance and daytime monitoring, and to go ahead with a display for 8 days and nights on that basis.

UPDATE2: Mai Dao-Horton has e-mailed me saying that the statement attributed to her by the Santa Cruz Sentinal was in fact made by Sonya Newlyn. She says she was misquoted twice in the Sentinel article.

In Ashland, Oregon, dozens of parents are upset after Bellview Elementary School Principal Michelle Zundel removed a holiday tree when a family complained that it is a religious symbol. According to today's Southern Oregon Mail Tribune, the principal also created new guidelines for school displays that effectively bar holiday trees, Santa Claus figures and dreidels, that courts generally classify as secular. However, under the new guidelines, wreaths, candles, candy canes, snowflakes and snowmen are permitted. Organizers of the "giving tree program" said they were not trying to promote Christianity, but were merely trying to help needy students and spread holiday cheer with the tree. Zundel said that with compulsory attendance, schools need to be more sensitive than the law requires. UPDATE: KGW News reported on Dec. 10 that a compromise has been reached in Ashland. The original tree will be replaced by a holiday display including three trees, snow and gifts for needy children.

South African Court Allows Zulu Thanksgiving Ritual To Proceed

IOL reports that in South Africa today, the Pietermaritzburg High Court dismissed a challenge by Animal Rights Africa to the Ukweshwama ceremony practiced by Zulus. The ceremony involves the bare-handed killing of a bull as a way of thanking God for the first crops of the season. Zulus believe that by killing the bull, they are transferring its power to their king. East Coast Radio on Wednesday summarized the arguments made at trial. In allowing the ceremony scheduled for tomorrow to proceed, the judge said that he was persuaded by the affidavit [described here] of a cultural expert, Professor Jabulani Mapalala, that objections to the ritual were based on untrue information and hearsay. In a statement issued after the court's decision was released, ARA asked people to light a candle tomorrow afternoon and spend the day in reflection in solidarity and compassion with the bull that will be slaughtered. [Updated]

Court Says White Supremacist Movement Is Not A "Religion"

In Conner v. Tilton, 2009 U.S. Dist. LEXIS 111892 (ND CA, Dec. 2, 2009), in a decision unusually detailed in its analysis for a case brought by a prisoner pro se, a California federal district court held that the White supremacist Creativity Movement is not a "religion" for purposes of the First Amendment or RLUIPA. In the case, an inmate sought the right to practice various aspects of his purported religion in Pelican Bay State Prison. In deciding the case, the court relied on the definition of "religion" articulated by the 3rd Circuit in Africa v. Pennsylvania:

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.

Applying that to Creativity, the court found that Creativity does not deal with fundamental and ultimate questions. Rather, its focus is on "a pragmatic philosophy that Creators must act to ensure the survival and promote the dominance of certain members of society." It is not comprehensive. "[T]he essence of Creativity is confined to 'one question or one moral teaching' which, again, can be summed up by Creativity's Golden Rule: 'What is good for the White Race is the highest virtue; what is bad for the White Race is the ultimate sin.'" Finally, "while plaintiff has presented evidence that shows Creativity has formal and external characteristics that might be considered similar to those associated with more traditional religions, their sole purpose is to support what the Court already has found to be a secular belief system."

Intervention Denied In Case Challenging Parsonage Allowance

In Freedom from Religion Foundation v. Geithner, 2009 U.S. Dist. LEXIS 111776 (ED CA, Dec. 2, 2009), a California federal district court refused to permit a pastor to intervene in FFRF's Establishment Clause challenge to the parsonage allowance provisions in the federal and California tax laws. (See prior posting.) The pastor failed to show that the government will inadequately represent his interests in defending the challenge to the tax code provisions that exclude from income the value of housing (or housing allowances) furnished to "ministers of the gospel." The court however did grant the pastor's motion for leave to file an amicus brief.

Obama Lights National Christmas Tree

President Obama and his family last night lit the National Christmas Tree-- a 40 foot Colorado blue spruce growing on the Ellipse just south of the White House. AP reports on the ceremony which featured celebrity entertainers, Santa and Mrs. Claus, and Michelle Obama reading The Night Before Christmas to a group of children. In his remarks (full text), President Obama said in part:

Tonight, we celebrate a story that is as beautiful as it is simple. The story of a child born far from home to parents guided only by faith, but who would ultimately spread a message that has endured for more than 2,000 years -- that no matter who we are or where we are from, we are each called to love one another as brother and sister.

While this story may be a Christian one, its lesson is universal. It speaks to the hope we share as a people. And it represents a tradition that we celebrate as a country -- a tradition that has come to represent more than any one holiday or religion, but a season of brotherhood and generosity to our fellow citizens.

9th Circuit Grants Indian Tribes Preliminary Injunction Against Mt. Tebo Mining Project

In South Fork Bank Council of Western Shoshone of Nevada v. U.S. Department of the Interior, (9th Cir., Dec. 3, 2009), a group of Indian tribes sought a preliminary injunction to stop Barrick Gold Corp.'s open pit gold mining project on Nevada's Mt. Tebo. The mountain is a religious site for the tribes. The district court denied a preliminary injunction. (See prior posting.) On appeal the tribes did not challenge the district court's rejection of their claim under the Religious Freedom Restoration Act. The tribes would continue to have access to the areas that had the most religious significance to them. However the tribes did appeal the denial of relief for alleged violations of the Federal Land Policy Management Act (FLMPA) and the National Environmental Policy Act (NEPA).

The court of appeals agreed with the district court that the executive branch had complied with an Executive Order issued under the FLPMA requiring accommodation of tribal access and ceremonial use of sacred sites and barring physical damage to the sites. However the court of appeals agreed with the tribes that the government had violated NEPA. It ordered entry of a preliminary injunction because, in its environmental impact statement, the Bureau of Land Management had not adequately studied the serious effects of processing refractory ore and exhausting scarce water resources. AP reports on the decision.

State TV In Iran Bans Make-Up For Women

ProductionME reported yesterday that Ezatollah Zarghami, head of Iran's state television, has ordered that women appearing on television will not be permitted to wear make-up. Saying that make-up is against Islamic Sharia law, Zarghami told producers to be vigilant. He also said that programs use excessive music and urged his staff to "refine" their music.

Bridgeport Diocese Releases Priest Sexual Abuse Records

On Tuesday, the Roman Catholic Diocese of Bridgeport (CT) announced that it had complied with the heavily contested court order requiring it to release previously sealed documents relating to 23 now-settled sexual abuse lawsuits against seven priests. Four newspapers had sought release of the documents. Both the Hartford Courant and the New York Times summarized some of the 12,000 pages of memos, records and testimony, focusing particularly on depositions by then-Bishop Edward Eagan. The Harford Courant, which has links to the full text of a number of the documents, says: "the Bishop showed little compassion for the alleged victims and instead argued with attorneys that only a 'remarkably small number' of priests have ever been accused of wrongdoing."

Church Challenge To Zoning Enforcement Not Barred By Claim Preclusion

In McGuire v. Clackamas County Counsel, 2009 U.S. Dist. LEXIS 111390 (D OR, Nov. 24, 2009), an Oregon federal district court rejected a magistrate's findings that "claim preclusion" required dismissal of claims by the pastor-founders of a local church alleging that application of local zoning ordinances violated their free exercise of religion. The federal magistrate judge's recommendations, with additional background, are at McGuire v. Ciecko, 2009 U.S. Dist. LEXIS 111127 ( D OR, Oct. 26, 2009). The suit also alleged that the local prosecutor in the earlier case seeking zoning enforcement had defamed plaintiffs by attacking their motives for forming a church. The district court accepted the magistrate's recommendation that this claim against the prosecutor be dismissed on immunity grounds, but referred the case back for the magistrate to rule on whether the immunity defense applied to other defendants in the case as well.